People v. Panknin

• Citation: 4 Mich.App. 19,143 N.W.2d 806
• Decision Date: 26 July 1966
• Docket Number: No. 3,No. 684,684,3
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Donald Edward PANKNIN, Defendant and Appellant. Cal
• Court: Court of Appeal of Michigan (US)

Page 806

143 N.W.2d 806

4 Mich.App. 19

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Donald Edward PANKNIN, Defendant and Appellant.

Cal. No. 684.

Court of Appeals of Michigan, Division No. 3.

July 26, 1966.

Robert D. Mandenberg, Alpena, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, John F. Kowalski, Pros. Atty., Alpena County, Alpena, for appellee.

Before HOLBROOK, P.J., and BURNS and McGREGOR, JJ.

HOLBROOK, Judge.

Defendant was tried and convicted by verdict of a jury of '(b)reaking and entering in the night time' ¹ in the circuit court for Alpena County on June 17, 1963, and sentenced to 3--15 years in prison. Defendant's motion for new trial was denied by the trial judge July 12, 1963. Defendant appeals and raises 5 questions for review:

1. Was the trial court without jurisdiction over the instant case and did the trial court err in denying defendant's motion for directed verdict on said grounds, and in entering judgment and sentence?

2. Did the trial court err in denying Defendant's motion to suppress evidence in determining the search warrant was void but that the search and seizure was lawful because incident to a lawful arrest?

3. Did the trial court err in refusing to quash information and discharge defendant on the ground that his arrest was lawful, upon probable cause and that search and seizure of evidence was incident to a lawful arrest?

4. Was the conduct of the prosecutor unfair, improper and prejudicial so as to constitute reversible error, and, did the trial court err in failing to control the prosecutor's actions so as to deny defendant the right to a fair and impartial trial?

5. Did the trial court err in failing to direct a verdict of not guilty on the grounds that there was insufficient evidence from which the jury could find defendant guilty beyond a reasonable doubt?

The pertinent facts pertaining to the first question are as follows: Complaint was filed in the municipal court for the city of Alpena, February 5, 1963, and warrant issued the same day charging defendant with the crime in question. Defendant waived examination and return was made by the magistrate to the circuit court on February 6, 1963. Defendant was arraigned and requested appointment of legal counsel which was granted and the matter was remanded back to the municipal judge for preliminary examination, which was commenced February 21, 1963, and completed March 7, 1963, at which time the action was dismissed and defendant discharged. This case was circuit court file No. 1841. Another complaint charging the same offense was made before a justice of the peace of Alpena township, who issued a warrant. Defendant was arrested thereon subsequent to the dismissal of the first action and his discharge by the municipal judge. Defendant waived a preliminary examination on the new charge and was bound over to the circuit court for trial. Upon arraignment in circuit court, the same counsel was appointed again for defendant. Trial was had resulting in conviction of Defendant.

The dismissal of the complaint and warrant and the discharge of defendant in the first case No. 1841, did not preclude his subsequent arrest and prosecution for the same offense upon a proper complaint, because the dismissal on examination did not constitute his being placed in jeopardy. People v. Schoonover (1943), 304 Mich. 355, 361, 8 N.W.2d 95. See, also, Gaffney v. Circuit Judge, (1891), 85 Mich. 138, 48 N.W. 478.

The facts pertaining to the other questions raised on this appeal, appear to be as follows:

Alfred Somers, an Alpena city police officer, discovered at approximately 3:30 a.m. on the morning of February 5, 1963, the front windows of the Alpena Northside Jewelry Store broken and contents taken from therein. The time of this discovery was approximately 35 to 40 minutes after the same premises had been checked by the same officer, at which time the two front windows were intact. That night a very slight snow had fallen. There was enough covering the ground so that footprints were plainly visible in front of the jewelry store window. While there were several sets of footprints on the sidewalk there was one set in particular which stood out. In this set of footprints there was an obvious marking in the heel which made these tracks easily distinguishable from all others. This marked set of tracks were exactly in front of the store while all other tracks were several feet away from the windows indicating they were made by people merely passing the store. The distinguishing tracks were found underneath some of the broken glass from the windows and on top of other broken glass indicating they were made both before and after the windows were broken.

Somers summoned another Alpena policeman and two state police officers who followed the footprints with the distinguishing mark. They led some several blocks away to an address on East Lake Street in the city of Alpena. Upon noticing the tracks went into the home and that no tracks came out of the house, officer Somers by radio asked for information as to who owned the house. After being told it was owned by one Alfred Panknin, the four officers walked up to the side door of the home, knocked on the door and talked to Alfred Panknin, the owner. The officers asked Mr. Panknin if his son Donald were at home, to which he replied 'yes'. The officers then asked if they could talk to Donald and he replied, 'Certainly, come on in.' Since Mr. Panknin was crippled, he did not directly lead the officers to Donald's room; however, he pointed to the stairway and told them how to reach it themselves. Alfred Panknin also told the officers they could search the house. The officers walked into Donald's room at approximately 4:30 in the morning. He was awake but in bed. They told him they were investigating a breaking and entering; and he asked them 'Where's your paper?' The officers said 'We will get one.' and left the bedroom followed closely by Donald Panknin, the defendant. Upon leaving the room one of the officers noticed a pair of shoes were still wet around the soles and contained the distinguishing heel mark which they had been following. The officers promptly left and talked to the Prosecuting attorney. They then went and obtained a search warrant, and returned to the house and searched the bedroom of Donald Panknin and found various watches and diamond rings stashed in a sock, and hidden under a table. There was also a ball peen hammer on a table and a watch in a chair, easily observable by anyone. After the arrest, the owner of the jewelry store informed the officers that two watches had not been found and they then went to the jail and searched the defendant and found the two watches attached to a shoe string which was around his waist.

The trial judge in ruling on defendant's motion to suppress the evidence and quash the information determined that the search warrant had been illegally issued because of procedural defects, however, that there had been a lawful arrest and therefore the search made in connection therewith was proper and the evidence admissible.

The issues raised by defendant's second and third questions are interrelated and will be dealt with together. The ruling of the trial judge that the search warrant was invalid, was correct. The first entry of the officers into the house of Alfred Panknin was lawful because they were invited in by the owner of the home and were granted permission to enter the room defendant was occupying, for the purpose of talking to him. Permission was also given to search the house.

Defendant claims that his constitutional rights under Const.1908, art. 2, § 10 ² and U.S.Const.Am. 4 ³ had been violated.

Appellant's position is tenable unless it be determined under the facts of this case that defendant was lawfully arrested, and the search made in conjunction with such lawful arrest.

The rule concerning lawful arrest of a person for a felony without a warrant is set forth in the case of People v. Bressler (1923) 223 Mich. 597, on pp. 600, 601, 194 N.W. 559, on p. 560, wherein Mr. Justice McDonald stated as follows:

'An officer may arrest without warrant in cases of felony upon information that would justify a reasonable man in acting upon it. Ross v. Leggett, 61 Mich. 445, 28 N.W. 695, 1 Am.St.Rep. 608.

"No one (without a warrant) has any right to make an arrest * * * in the absence of actual belief, based on actual facts creating probable cause of guilt. Suspicion without cause can never be an excuse for such action. The two must both exist, and be reasonably well founded.' People v. Burt, 51 Mich. 199, 16 N.W. 378.

'In People v. McLean, 68 Mich. (480) 485, 36 N.W. (231) 233, this court said:

"The question whether an arrest can be made without warrant has been decided from time to time according to the various circumstances of each particular case, many of which may be found in 2 Hale, P.C. 72--105. The principles recognized in the cases are:

"1. Any person may arrest another who is actually committing, or has actually committed a felony.

"2. He may arrest any person whom he suspects on reasonable grounds to have committed a felony, if one has actually been committed.

"3. Any constable or sheriff may arrest any person whom he suspects, on reasonable grounds, of having committed a felony, whether in fact a felony has been actually committed or not." ⁴

Probable cause to believe that the crime of breaking and entering had been committed by someone under the facts present in the case at hand, cannot be seriously questioned. A proper inference could be made that the person making the tracks with the distinguishing mark, were the only ones in a position in front of the store building to have perpetrated the crime. This taken together with the observation of the wet soles of defendant's shoes in his father's home, if observed by the officers while legally present, would appear to be sufficient to ...